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The Chief Question

Marriage equality

This post is part of the inaugural legal symposium we at are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Thursday, our own Vienna Hagen aka AnonyGrl sent us her take. Friday, Bill Santagata provided his thoughts.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!

By Adam Bonin

I’ll be brief, because there’s only one new thought I want to interject here. Since this suit was initiated I thought it was a straightforward application of the Moreno/City of Cleburne/Romer line of cases striking down statutes passed with no basis other than animus against a politically unpopular group. While admirable, I believed Judge Walker went further than he needed to in the district court decision, and was gratified to see the Ninth Circuit stick to the narrower, more-defensible-right-now-before-this-Court holding that there was no rational basis for a state to take way the label “marriage” and only the label, not the rights from same-sex couples. As Judge Reinhardt wrote:

It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.

I’m not afraid of taking this case to the Supreme Court because it’s so in Justice Kennedy’s wheelhouse, and I don’t believe that the Court would use this as an opportunity to go broader and declare a national right to marriage equality. So there’s nothing to gain substantively here through the Supreme Court which wouldn’t be in place with a cert denial, and obviously a cert denial would kill Prop 8 sooner. Here’s one more good reason against having the Court take the case: the Chief Justice of the United States.

We’ve seen this week what a restrained judicial actor he can be – or, what a cagey political operator. YMMV. Either way, I don’t like the idea of having both this case and the DOMA case from the First Circuit being argued in early 2013, which is the way I believe the schedule would go, and the simultaneous nature of the two cases allowing John Roberts to play Judicial Goldilocks. See, on the one hand he can say “Prop 8 is bad, but we can strike it down based on its unique circumstances” to prove he’s not a bigot, but still find some “rational” basis for defending the federal government’s refusal to grant equal benefits to same-sex couples even when their home states have recognized their marriages, thus withholding the broader prize. If the Court has to address that second question anyway – and it does – then I don’t want to afford him any leeway with the jurisprudential equivalent of “but some of my best decisions are equality-friendly!” Make him answer the question once, and I think he’s more likely to come down on the side of progress and history.

Adam Bonin is a solo practitioner in Philadelphia, where he concentrates on the field of political law, and a contributing writer to the Daily Kos website, where he writes for the front page on legal issues.


  • 1. Scottie Thomaston  |  July 2, 2012 at 9:09 am

    “but some of my best decisions are equality-friendly!”

    BRILLIANT. I laughed so much.

  • 2. Adam Bink  |  July 2, 2012 at 9:24 am


  • 3. Sagesse  |  July 2, 2012 at 9:46 am

    It's scary. Don't know why W thought it was important to appoint a moderate as Chief Justice for the next 30 years, but he did. Because he wanted his man to be Chief Justice for the next 30 years. Romney would appoint Bork 2013. Truly, truly scary.

  • 4. Scott Wooledge  |  July 2, 2012 at 9:57 am

    Of course, the Democrats spiked Bjork's nom all those years ago. I wonder if they would now?

    Alas, Bjork, arguably began the epic battle to filibuster Supreme Court nominees on idealogical basis. Confirmation had be more perfunctory than not, as a broad generality. Since then it's been epic.

    It was something of a Pandora's Box. I'm sure the GOP would have gotten around to digging in on the dangers of appointing liberals to the court, sooner or later. TV hearings play into it too, as America can now treat it as a spectator sport to cheer one "team" or another. God forbid we nominate someone who can't be summed up in a 30-second soundbite.

  • 5. Sagesse  |  July 2, 2012 at 12:39 pm

    I didn't mean 'Bork' literally. Bork 2013 would be a Bork clone.

  • 6. Scott Wooledge  |  July 2, 2012 at 3:47 pm

    I understood. I wish I felt confident the Ds would be able to thwart a Bork clone in 2012… as the did Original Recipe in 1987.

    But that wouldn't be bipartisan to vote against Bork-Clone™ 2012. It might make the Republicans angry. Besides, if Scalia retires it's only fair we should replace him with another off-the-charts, reactionary extremist, right? Have to keep things balanced.

  • 7. Scott Wooledge  |  July 2, 2012 at 9:52 am

    Thank you Adam. There really appears to be a pretty broad consensus among this essays that there isn't that much likelihood of scoring a grand prize of national right to marry coming out of the SCOTUS on THIS PARTICULAR CASE.

  • 8. Adam Bonin  |  July 2, 2012 at 9:57 am

    Only way I'd see that happening would be if Kennedy decided next term was his last and he wanted to go out with a Big Statement. Otherwise, I just don't see the Court going that far.

  • 9. Scottie Thomaston  |  July 2, 2012 at 10:03 am

    I read way back in 2010 that Kennedy had "told family members" that he was thinking of retiring if a Republican wins in 2012. It's just rumors, so I doubt the trustworthiness of the report, but that's what was said.

  • 10. Scott Wooledge  |  July 2, 2012 at 11:15 am

    It has crossed my mind, with Kennedy (reportedly) leading the charge to overturn Hardwick, and writing majorities on two of the LGBT communities' biggest SCOTUS victories (Lawrence and Romer), his leading the charge to deliver a gay Loving V. Virginia declaration from the court would absolutely cement Justice Kennedy as a near-mythical hero when the history books of LGBT rights are written.

    But that is 100% mind-reading and and wishful thinking to even speculate Kennedy has any desire to be remembered as such.

  • 11. Jay Jonson  |  July 4, 2012 at 6:36 am

    I am one of those who have put a great deal of faith in Kennedy. He and Ginsburg have written the most eloquent opinions about gay people. The eloquence of Romer and Lawrence made me pretty certain that he would do the right thing when it came to ssm. However, I am startled by the extremism of the opinion he wrote for the minority in the Affordable Health Care Act case. That dissent is one of the most radical assertions of judicial activism I have ever read (it would have struck down not just the mandate or the medicaid provisions, but the entire act, disregarding 50 years of precedent re severability). I now wonder if we can trust him as the fifth vote.

  • 12. Steve  |  July 2, 2012 at 11:57 am

    I worry a bit that they could rule that the way Romer was applied in CA wasn't correct. A big reason for the Romer decision was that it denied people all rights and protections. Prop 8 isn't like that. Despite denying the right to marry, CA still has arguably the most pro-gay laws in the country. Sure, a rational person would of course conclude that it still violates equal protection, but with the way lawyers turn the law into pretzles just to achieve some desired result, who knows…

  • 13. Scott Wooledge  |  July 2, 2012 at 12:13 pm

    I don't see how that could happen.

    I mean there is a lot of ways it may go wrong, but not that way. Romer essentially found that LGBT people could not be being singled out as a class and made as Kennedy said, "strangers to the law."

    Prop 8 essentially did single out LGBT people as a class, and made them strangers to the marriage laws of CA. That LGBT people enjoyed all the exact same privileges, obligations and benefits of marriage via domestic partnerships, only underscored there was no conceivable policy objection to treating LGBT people the same.

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